Sergacheva O.A. Revisiting the Legal Regulation of Essential Conditions of the State (Municipal) Contract in the Legislation of the Russian Federation

DOI: https://doi.org/10.15688/lc.jvolsu.2017.1.21

Olga A. Sergacheva

Candidate of Juridical Sciences, Assistant Professor, the Department of Civil Law Disciplines, Volgograd Institute of Management – the Branch of the Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation, Gagarina St., 8, 400131 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.

Introduction: in recent years, the study of the legal regulation of public procurement in general, and the state (municipal) contract in particular, is becoming increasingly important. This is due, primarily, to the difficulties of the law enforcement arising from the imperfect legal and technical work of the legislator when creating Federal law № 44-FZ of 05.04.2013 “On the Contract System of the Federal and Municipal Procurement of Goods, Works and
Services”. The issue of the essential conditions of the state (municipal) contract is debatable in the absence of such a term in the law, evidenced by the numerous civil law studies on the essential (mandatory, necessary) conditions of the state (municipal) contract as a kind of the civil contract. The purpose of the study is to reveal the main approaches to the understanding of the essential conditions of a civil contract and, in particular, the state (municipal) contract. Methods: there have been applied in aggregate the methods of scientific knowledge, including the basic methods of systemacity and analysis. Results: it is proved that the essential conditions of a civil contract are the conditions on the subject of the contract, the conditions which are named in the law or other legal acts as essential or necessary for the contracts of this type, and also all those conditions concerning which there must be reached an agreement upon the application of one of the parties. The requirements of Clause 1 of Article 432 of the RF Civil Code apply not only to civil law contracts, but also to state (municipal) contracts. The essential conditions of state (municipal) contracts should include both those regulated by Federal law № 44-FZ and those specified as essential for the certain types of state (municipal) contracts. Conclusions: the terminological inaccuracies do not affect the essence of the phenomenon, namely, with due regard to the reference by Article 432 of the Civil Code that the essential conditions are those which are named in the law or other legal acts as essential or necessary for the contracts of this type, the mandatory conditions, referred to in Federal law № 44-FZ, can be considered the essential conditions of the state (municipal) contract.

Keywords: state (municipal) contract, essential conditions, mandatory conditions, procurement for the state and municipal needs, civil contract.

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